STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED In re A.B. 

February 23, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS No. 17-0891 (Roane County 16-JA-51) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother, A.R., by counsel D. Kyle Moore, appeals the Circuit Court of Roane 

County’s September 5, 2017, order terminating her parental rights to A.B.1

 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a 

response in support of the circuit court’s order. The guardian ad litem (“guardian”), Erica 

Brannon Gunn, filed a response on behalf of the child in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in denying her motion for a post-adjudicatory 

improvement period and terminating her parental rights. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On December 1, 2016, the guardian for the child filed a petition alleging petitioner had a 

chronic substance abuse problem that impaired her ability to properly care for the child and 

previously led to the involuntary termination of her parental rights to two older children. The 

petition further alleged that petitioner received inpatient drug treatment four times, but continued 

to abuse drugs, and that petitioner was incarcerated in June of 2016 when she tested positive for 

methamphetamine in violation of her probation stemming from a child neglect charge. Finally, 

the petition alleged that the child had been exposed to domestic violence between his parents, 

with petitioner being the primary aggressor. 

On December 6, 2016, the circuit court held a preliminary hearing. At that time, 

petitioner was in a residential drug treatment program in Beckley, West Virginia. The circuit 

court granted petitioner supervised visitation with the child, subject to petitioner completing the 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

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residential drug treatment program, her participation in random drug screens, and approval by 

the child’s therapist. On January 30, 2017, the circuit court held an adjudicatory hearing. 

Petitioner stipulated to chronic substance abuse and domestic violence between her and the 

child’s father. Accordingly, the circuit court adjudicated petitioner as an abusing parent. 

On August 31, 2017, the circuit court held a dispositional hearing wherein petitioner 

appeared by telephone. Petitioner admitted that she participated in services but only submitted to 

three drug screens during the pendency of the case. Petitioner blamed the DHHR for the delay in 

setting up drug screens, but also admitted that she failed to provide the DHHR with her work 

schedule so that drug screens could be scheduled. She further admitted that of the three screens, 

one was positive for methamphetamine and that she had marijuana in her system at the time of 

the dispositional hearing. A caseworker testified that petitioner participated in parenting and 

adult life skills classes, but failed to comply with drug screens. The circuit court found that 

petitioner had a chronic drug abuse problem which led to the involuntary termination of her 

parental rights to two older children and that petitioner failed to respond to treatment efforts. The 

circuit court further cited petitioner’s psychological examination, which found her prognosis for 

improved parenting to be “extremely poor to nonexistent.” Finally, the circuit court found no 

reasonable likelihood that petitioner could substantially correct the conditions of abuse and 

neglect in the near future and that termination was in the child’s best interests. Ultimately, the 

circuit court terminated her parental rights in its September 5, 2017, order.2

 It is from the 

dispositional order that petitioner appeals. 

The Court has previously established the following standard of review: 

“Although conclusions of law reached by a circuit court are subject to de 

novo review, when an action, such as an abuse and neglect case, is tried upon the 

facts without a jury, the circuit court shall make a determination based upon the 

evidence and shall make findings of fact and conclusions of law as to whether 

such child is abused or neglected. These findings shall not be set aside by a 

reviewing court unless clearly erroneous. A finding is clearly erroneous when, 

although there is evidence to support the finding, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been 

committed. However, a reviewing court may not overturn a finding simply 

because it would have decided the case differently, and it must affirm a finding if 

the circuit court’s account of the evidence is plausible in light of the record 

viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 

470 S.E.2d 177 (1996). 

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds 

no error in the proceedings below. 

First, petitioner argues that the circuit court erred in denying her motion for a postadjudicatory improvement period. Petitioner argues that the DHHR did not make reasonable 

2

The father’s parental rights were also terminated. According to the guardian and the 

DHHR, the child is placed in a foster home with a permanency plan of adoption in that home. 

2 
efforts to reunify her with her child as they delayed setting up drug screens and did not make 

efforts to place her and the child into any therapy. Pursuant to West Virginia Code § 49-4-

604(b)(7)(C), the DHHR was not required to make reasonable efforts to preserve the family due 

to the involuntary termination of petitioner’s parental rights to two older children. Nevertheless, 

the DHHR provided petitioner with services including drug screens, visitation with the child, and 

parenting classes, with which petitioner did not fully comply. Moreover, West Virginia Code § 

49-4-610(2)(B) provides that in order to be granted a post-adjudicatory improvement period, the 

parent must “demonstrate[ ], by clear and convincing evidence, that the [parent] is likely to fully 

participate in the improvement period.” 

Here, petitioner was offered services throughout the proceedings, but failed to comply 

with consistent drug screens. Petitioner attempted to blame the DHHR for the delay in setting up 

drug screens, but also admitted at the dispositional hearing that she failed to give service 

providers her work schedule so that the screens could be set up. Despite having completed four 

drug treatment programs, petitioner admitted to having a positive drug screen for 

methamphetamine during the proceedings and admitted to having marijuana in her system on the 

day of the dispositional hearing. Due to her continued drug use and failure to comply with 

services, petitioner failed to meet the burden to receive a post-adjudicatory improvement period. 

Therefore, we find no error in the circuit court’s denial of petitioner’s motion for a postadjudicatory improvement period. 

Next, petitioner argues that the circuit court should have employed a less-restrictive 

alternative than termination of her parental rights because the DHHR did not make reasonable 

efforts to reunify her with her child. We disagree. As noted above, the DHHR was not required 

to make reasonable efforts to preserve the family under these circumstances. Further, West 

Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon 

findings that there is “no reasonable likelihood that the conditions of neglect or abuse can be 

substantially corrected in the near future” and that termination is necessary for the child’s 

welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the 

conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . 

. ha[s] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts[.]” 

We have also held as follows: 

“Termination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the 

use of intervening less restrictive alternatives when it is found that there is no 

reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially 

corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). 

3 
As discussed above, the DHHR provided petitioner services, although she failed to 

comply with consistent drug screens and continued to use drugs throughout the proceedings. 

Further, due to her failure to drug screen, petitioner was unable to visit with the child. 

Ultimately, the circuit court found that termination of petitioner’s parental rights was the leastrestrictive disposition because there was no reasonable likelihood that petitioner could correct the 

conditions of abuse and neglect in the near future and termination was necessary for the child’s 

welfare. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate 

parental rights upon such findings. Accordingly, we find no error in the circuit court’s decision 

to terminate petitioner’s parental rights. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

September 5, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: February 23, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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